Secretary of Labor v. CONSOL Mining Company, LLC

Plain-English summary

CONSOL Mining Company asked the Secretary to produce unredacted special-assessment review forms related to two proposed penalties. The Secretary argued that the redacted portions contained deliberative communications protected by the deliberative-process privilege. Judge Alan G. Paez found the forms marginally relevant to the Secretary's negligence and unwarrantable-failure theories, but concluded that the protected material was not essential to a fair determination because CONSOL could access the underlying facts through other sources. The judge denied CONSOL's motion to compel and declined to order an in camera review.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(b)(1)(B), 30 U.S.C. § 820(i), 29 C.F.R. § 2700.56(b)
• Outcome: CONSOL's motion to compel unredacted special-assessment review forms was denied.
• Key point: Deliberative material need not be disclosed when the requesting party can obtain the factual basis elsewhere and disclosure is not essential to a fair determination.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, D.C. 20004-1710

SECRETARY OF LABOR,

:     CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH

:    

ADMINISTRATION (MSHA),

:     Docket No. WEVA 2024-0231

Petitioner,

:     A.C. No. 46-09569-594789

:    

v.

:  

:

CONSOL MINING COMPANY, LLC

Respondent.

:     Mine: Itmann No. 5

:

ORDER DENYING RESPONDENT’S
MOTION TO COMPEL UNREDACTED SPECIAL ASSESSMENT REVIEW FORMS

This case is before me upon the filing of the Petition
of the Secretary of Labor for Assessment of Civil Penalty against CONSOL Mining
Company, LLC (“CONSOL”) pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977, as amended (“Mine Act”), 30 U.S.C. § 815. On July 17,
2024, Chief Administrative Law Judge Glynn F. Voisin assigned me this docket
and attached a copy of my Prehearing Order. Counsel for the parties have
complied with my Prehearing Order and filed their initial prehearing reports. By
order dated November 20, 2024, I set this matter for a hearing to be held on
May 28–30, 2025, in Beckley, West Virginia.

Since complying with my Prehearing
Order, CONSOL has filed a series of motions related to the Secretary’s proposed
special assessments. This order focuses on CONSOL’s Motion to Compel Unredacted
Special Assessment Review Forms for the two proposed penalties in this case
which, the Secretary claims, contain privileged communications.

I.  BACKGROUND

The Special Assessment Review (“SAR”)
Form (MSHA Form 7000-32, Revised August 2006) consists of an initial penalty
recommendation by the issuing MSHA inspector, with a narrative in support, and
concurrences or oppositions of supervisors indicated by a check in a box, which
may be accompanied by comments. (See Resp’t Mot., Ex. 1.) SAR Forms
typically repeat facts written elsewhere that the inspector would like MSHA to
consider when reviewing the recommendation that the penalty be specially
assessed. Language on the SAR Form states the form contains information that is
privileged. Here, the Secretary issued special assessments for both the section
104(d)(1) citation and order issued to CONSOL. (Sec’y Pet., Ex. A.)

During discovery, CONSOL requested
that the Secretary share her SAR Forms for the citation and order both issued
to CONSOL under section 104(d)(1) of the Mine Act. (Resp’t Mot. at 1.) In
response, the Secretary asserted that some of the information in the SAR Forms
is protected from discovery under the deliberative process privilege. (Resp’t
Mot. at 1.) Thus, on October 8, 2024, the Secretary provided CONSOL with
redacted copies of the SAR Forms for the citation and order in this case. (Sec’y
Opp’n at 1.) Specifically, the Secretary shared for both violations the
information on the SAR Forms in Items 1 through 9 related to the relevant MSHA district
and field offices, the mine’s identification number and name, the operator’s
name, the citation/order number and issue date, as well as checked boxes marked
as to whether this was an accident-related violation and whether the operator
was notified of the special assessment. (Resp’t Mot., Ex. 1.) However, MSHA redacted
its staff’s deliberative analysis for the remainder of Items 10 through 13 for
Citation No. 9595886—as well as Items 10 and 11 for Order No. 9595887 (Items 12
and 13 were not filled out and left blank)—as to why the violations warrant
special assessment penalties. (See Resp’t Mot., Ex. 1.)

On November 15, 2024, CONSOL filed
a pre-trial Motion to Compel Unredacted Special Assessment Review Forms for the
citation and order in this case. On November 20, 2024, the Secretary filed an
unopposed Motion for Extension of Time to respond to CONSOL’s Motion to Compel,
which I granted on November 22, 2024. On December 6, 2024, the Secretary filed
her Opposition to CONSOL Mining Company, LLC’s Motion to Compel Production of
“Special Assessment Review Form.”

CONSOL asks me to require the
Secretary to turn over the unredacted SAR Forms, because CONSOL believes the
information in the documents is needed to challenge the Secretary’s proposed
special assessment penalties at the hearing. (Resp’t Mot. at 1.) CONSOL also
asks that I conduct an in camera review to determine whether the
documents are protected by the government’s deliberative process privilege. (Resp’t
Mot. at 3.) Because CONSOL’s motion involves the Secretary’s proposed civil
penalties, I now discuss the legal framework of the Mine Act’s penalty
procedures, as well as the government’s deliberative process privilege as it
applies to the Secretary’s SAR Forms.

II.  PRINCIPLES OF
LAW

A.        The Mine Act’s Penalty Scheme

1.         The
Secretary Proposes Civil Penalties

When an “authorized representative”
of the Secretary finds a violation of the Mine Act or of “any mandatory health
or safety standard, rule, order, or regulation promulgated pursuant to [the
Mine Act],” 30 U.S.C. § 814(a), the Secretary may propose a civil penalty.
30 U.S.C. § 815(a). Six statutory factors guide the Secretary’s
enforcement discretion in deciding whether to assess a penalty and, if so, in
what amount. Those factors are: (1) “the operator’s history of previous
violations”; (2) “the appropriateness of such penalty to the size of the
business of the operator charged”; (3) “whether the operator was negligent”;
(4) “the effect on the operator’s ability to continue
in business”; (5) “the gravity of the violation”; and (6) “the demonstrated
good faith of the operator charged in attempting to achieve rapid compliance
after notification of a violation.” 30 U.S.C. § 815(b)(1)(B). The statute is
explicit that, in proposing penalties, “the Secretary may rely upon a summary
review of the information available to him and shall not be required to make
findings of fact concerning the above factors.” 30 U.S.C. § 820(i).

The Secretary has promulgated
regulations that guide her exercise of discretion in proposing penalties. Normally,
MSHA applies the Secretary’s “regular assessment” formula set forth in 30
C.F.R. § 100.3 to calculate the amount of a proposed penalty. However, the
Secretary permits MSHA to waive the regular assessment process if MSHA
“determines that conditions warrant a special assessment.” 30 C.F.R. § 100.5(a).
The “special assessment” approach provides “the Secretary greater latitude in
deciding what penalty to propose, requiring only that the Secretary base the
proposed penalty on her own weighing of the six statutory criteria” set forth
in 30 U.S.C. § 815(b)(1)(B). Am. Coal Co. v. FMSHRC, 933 F.3d 723, 725
(D.C. Cir. 2019). This approach comports with the Mine Act’s scheme of higher
penalties for violations issued along the “d-chain.” See Lodestar
Energy, Inc., 25 FMSHRC 343, 344 (July 2003) (holding that “[s]ection
104(d) of the Mine Act creates a ‘chain’ of increasingly severe sanctions that
serve as an incentive for operator compliance”).

2.         The
Commission Assesses Penalties De Novo

Under section 105(d) of the Mine
Act, if an operator contests an order, citation, or proposed penalty
assessment, the Commission must provide an opportunity for a hearing, and
thereafter a Commission Administrative Law Judge (“ALJ”) must “issue an order,
based on findings of fact, affirming, modifying, or vacating the Secretary’s
citation, order, or proposed penalty, or directing other appropriate relief.” 30
U.S.C. § 815(d). Section 110(i) of the Mine Act delegates to the Commission the
authority to assess all civil penalties based on the same six statutory factors
that informed the Secretary’s penalty proposal and the information relevant
thereto developed in the course of the adjudicative proceeding. 30 U.S.C. §
820(i).

Commission ALJs possess independent
authority to assess all contested civil money penalties de novo pursuant
to section 110(i) of the Mine Act. 30 U.S.C. § 820(i); 29 C.F.R. § 2700.30(b) (“[i]n determining the amount
of penalty, neither the Judge nor the Commission shall be bound by a penalty
proposed by the Secretary”); Am. Coal Co., 933 F.3d at 727 (holding
that “once violations are found, the determination of the appropriate remedy is
left to the Commission’s independent, de novo judgement”); Solar
Sources Mining, LLC, 42 FMSHRC 181, 183 (Mar. 2020) (holding that “the
Commission independently assesses a civil penalty de novo
based on findings of fact and consideration of [the] six penalty factors”); Sellersburg
Stone Co., 5 FMSHRC 287, 291 (Mar. 1983), aff’d, 736 F.2d 1147 (7th
Cir. 1984) (holding that “in a contested case the Commission and its judges are
not bound by the penalty assessment regulations adopted by the Secretary[,
r]ather . . . the amount of the penalty to be assessed is a de novo
determination”); Jim Walter Resources, Inc., 36 FMSHRC 1972, 1979 (Aug.
2014) (holding that “Commission Judges are accorded broad discretion in
assessing civil penalties under the Mine Act”); Cantera Green, 22 FMSHRC
616, 622 (May 2000) (holding that “the Commission and its judges are required
to assess penalties de novo”); Douglas R. Rushford Trucking, 22 FMSHRC
598, 600 (May 2000) (holding that “[t]he principles governing the Commission’s
authority to assess civil penalties de novo for violations of the Mine Act are
well established”); Shamrock Coal Co., 1 FMSHRC 469 (June 1979), aff’d
652 F.2d 59 (6th Cir. 1981) (“holding that de novo assessment of penalties is
within the authority of the Commission and its judges”).

Furthermore, Commission ALJs are
not bound by the Secretary’s regulations in 30 C.F.R. Part 100. Am. Coal Co.,
933 F.3d at 727; see also Brody Mining, LLC, 37 FMSHRC 1687, 1701 (Aug.
2015) (holding that the Part 100 regulations “are not binding in any way in
Commission proceedings”). Additionally, Commission “Judges are not required
to explain their divergence from a special assessment” because explaining a
divergence from an “opaque” MSHA penalty assessment—

serves neither the goal of
transparency and public trust nor the principles of fair and objective
assessments. On the contrary, such a requirement would interject a foundational
bias toward the enhanced penalty into the consciousness of the trier of fact,
whether or not the reason for the enhancement has been validated by the trial
process.

Solar Sources Mining, LLC, 42 FMSHRC at 200.

B.        Scope of Discovery

Per Commission Procedural Rule
56(b), “[p]arties may obtain discovery of any relevant, non-privileged
matter that is admissible evidence or appears likely to lead to the discovery
of admissible evidence.” 29 C.F.R. § 2700.56(b) (emphasis added). Commission Judges may also look to the Federal Rules of
Civil Procedure for guidance on any procedural question not governed by the
Mine Act, the Commission’s Procedural Rules, or the Administrative Procedure
Act. 29 C.F.R. § 2700.1(b). Under Federal Rule 26(b)(1), a party may discover
“any nonprivileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1)
(emphasis added). The scope of discovery under the Federal Rules is “construed
broadly to encompass any matter that bears on, or that reasonably could lead to
other matter that could bear on, any issue that is or may be in the case.” Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Additionally, parties
withholding otherwise discoverable information or documents on the basis of
privilege must expressly make such a claim and “describe the nature of the
documents, communications, or tangible things not produced or disclosed—and do
so in a manner that, without revealing information itself privileged or
protected, will enable other parties to assess the claim.” Fed. R. Civ. P.
26(b)(5)(A).

C.        Deliberative Process Privilege

1.         The General Rule

The statutory basis of the
deliberative process privilege is an exception to the disclosure requirements
of the Freedom of Information Act, which exempts “inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other
than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). See In re: Contests of Respirable Dust Sample Alteration
Citations (Dust Cases), 14 FMSHRC 987, 990-92 (June 1992) (discussing
the historical origins of the deliberative process privilege). In interpreting
the exception, the Supreme Court explained that the privilege protects the
“‘decision[-]making process of government agencies,’ and focus[es] on documents
‘reflecting advisory opinions, recommendations and deliberations comprising
part of a process by which governmental decisions and policies are
formulated.’” NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 150 (1975) (citation omitted); see also United States v. Exxon Corp., 87 F.R.D. 624, 636
(D.D.C. 1980) (holding the privilege protects the “thoughts, ideas, and
analyses that encompass the process by which an agency reaches a decision”); Coastal
States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)
(holding that the deliberative process privilege “covers recommendations, draft
documents, proposals, suggestions, and other subjective documents which reflect
the personal opinions of the writer rather than the policy of the agency”). The
purpose of the privilege is to ensure that “frank discussion of legal or policy
matters” is not inhibited by making those discussions public. Sears, Roebuck
& Co., 421 U.S. at 150.

In order for a document
to be protected under the deliberative process privilege, it must: (a) be
“pre-decision;” (b) pertain to communications between subordinates and
supervisors; and (c) relate to “deliberative” communication—i.e., the process
by which policies are formulated. Dust Cases, 14 FMSHRC at 992 (quoting Jordan v. U.S. Dep’t of Justice, 591 F.2d
753, 774 (D.C. Cir. 1978)). Thus, “[a] document is ‘pre[-]decisional’ if it
precedes, in temporal sequence, the ‘decision’ to which it relates.” Senate
of P.R. ex rel. Judiciary Comm. v. DOJ, 823 F.2d 574, 585 (D.C. Cir. 1987).

2.         Applicability of the Deliberative
Process Privilege to Factual Information

The
Commission has held that “purely factual information that does not expose an
agency’s decision[-]making process does not come within the ambit of the
privilege.” Dust Cases, 14 FMSHRC at 993 (citing Exxon v. Doe,
585 F. Supp. 690, 698 (D.D.C. 1983)). The Commission has explained that if the
factual information can be segregated from the otherwise protected deliberative
material, then it must be disclosed. Consolidation Coal Co., 19
FMSHRC 1239, 1246 (July 1997). However, even if the information can be
segregated, the party opposing disclosure can prevent disclosure by showing
“that the material is ‘so inextricably intertwined with the deliberative
material that its disclosure would compromise the confidentiality of
deliberative information that is entitled to protection.’” Id. at 1246–47
(quoting Providence Journal Co. v. U.S. Dep’t of the Army, 981 F.2d 552,
562 (1st Cir. 1992)).

Courts have applied the privilege
to disclosures of factual information when such disclosure “‘would expose an
agency’s decisionmaking [sic] process in such a way as to discourage
candid discussion within the agency and thereby undermine the agency’s ability
to perform its functions.’” Consolidation Coal, 19 FMSHRC at 1247
(quoting Quarles v. U.S. Dep’t of the Navy, 893 F.2d 390, 392 (D.C. Cir.
1990)). Specifically, “courts only protect from disclosure . . .
factual material in underlying documents when it is clear that there was an
evaluation made by an agency regarding which facts it would rely upon and those
which it would disregard.” Consolidation Coal, 19 FMSHRC at 1249
(citing Playboy Enterprises, Inc. v. United States Dep’t of Justice, 677
F.2d 931, 935-36 (D.C. Cir. 1982); Montrose Chemical Corp. v. Train, 491 F.2d 63, 68 (D.C. Cir. 1974)). 

3.         Overcoming the Deliberative
Process Privilege

Finally, even if the deliberative process
privilege applies, the Commission has noted that it is qualified and subject to
the balancing test set forth in Bright Coal Co., 6 FMSHRC 2520
(Nov. 1984), governing the informant’s privilege. Dust Cases, 14
FMSHRC at 994. Under this test, if “disclosure is essential to the fair
determination of a case, the privilege must yield.” Bright Coal Co., 6
FMSHRC at 2523 (citing Roviaro v. United States, 353 U.S. 53, 60–61
(1957)). Application of this test requires analysis of
the case’s particular circumstances, including whether the Secretary is in sole
control of the information, the nature of the violation, possible defenses, and
the impact of the information. Dust Cases, 14 FMSHRC at 988; Bright
Coal Co., 6 FMSHRC at 2526. The party seeking disclosure has the burden of
proving the facts necessary to establish that the information sought is
essential to a fair determination of the case. Bright Coal Co., 6
FMSHRC at 2526.

III.  PARTIES’
ARGUMENTS

In its Motion to Compel Unredacted Special Assessment
Review Forms, CONSOL argues that it needs the redacted information in the SAR
Forms to learn the basis of the Secretary’s proposed special assessment
penalties so that it can challenge the proposed penalties at the hearing and
otherwise adequately prepare a defense. (Resp’t Mot. at 1.) While CONSOL acknowledges
that Commission Judges decide penalties de novo, it disputes any
assertion that the SAR Forms are irrelevant. (Resp’t Mot. at 3.) Instead,
CONSOL argues that the SAR Forms are relevant because Commission Judges must
explain their reasoning for deviating from the Secretary’s proposed penalty. (Resp’t
Mot. at 3.) CONSOL adds that I will not be able to fully explain my penalty
assessment in this case without the information in the unredacted SAR Forms. (Resp’t
Mot. at 4.)

CONSOL also argues that it is
entitled to MSHA Inspector Andrew Mullins’s and MSHA Supervisor Nicholas
Christian’s written statements in the SAR Forms related to the violations because
the Secretary listed them as potential witnesses. (Resp’t Mot. at 1–2.) CONSOL
disputes that questioning MSHA Inspector Mullins about the basis of his written
statement in the SAR Forms during a deposition is an acceptable alternative to
the unredacted SAR Forms. (Resp’t Mot. at 3.) Lastly, CONSOL argues that
because these SAR Forms are no more deliberative than the citation and order,
they are not protected by the deliberative process privilege. (Resp’t Mot. at
2.)

The Secretary in her
opposition to CONSOL’s motion argues that the SAR Forms are not discoverable
because they are not relevant or reasonably calculated to lead to the discovery
of admissible evidence. (Sec’y Opp’n at 2.) In support, the Secretary asserts
that under the Mine Act, she is delegated only the duty of proposing penalties,
and the Commission has the authority to assess all civil penalties de novo.
(Sec’y Opp’n at 2.) Because the Commission has de novo authority to
assess civil penalties, the Secretary argues that the SAR Forms do not have the
tendency to make a fact more or less probable than it would be without the
evidence, and they are therefore not discoverable. (Sec’y Opp’n at 3.)

In the alternative, the Secretary contends that the
SAR Forms are not discoverable because they are protected by deliberative
process privilege. (Sec’y Opp’n at 3.) The Secretary argues that the
information contained in the SAR Forms consists of pre-decisional
communications, as they were exchanged prior to the formulation of MSHA’s
decision to specially assess the violations. (Sec’y Opp’n at 6.) The Secretary also
contends that the information in the SAR Forms is deliberative in nature, as it
constitutes the thoughts, ideas, reasoning, and analyses of the inspectors and
their supervisors in reaching the decision to specially assess the proposed
penalties for the violations. (Sec’y Opp’n at 6.) The Secretary adds that the
factual information contained in the SAR Forms is inextricably intertwined with
the inspectors’ decision-making process of whether the violations warrant
special assessment. (Sec’y Opp’n at 6.)

The Secretary further argues that if I order the
Secretary to provide the unredacted SAR Forms, MSHA Inspectors and Supervisors
would be discouraged from providing their candid analysis in the future for
fear of disclosure. (Sec’y Opp’n at 7.) The Secretary also contends that the
factual information sought by CONSOL is reasonably accessible to it and therefore
the information contained in the SAR Forms is not essential to a fair
determination of this case. (Sec’y Opp’n at 7.)

IV. ANALYSIS AND
CONCLUSIONS OF LAW

A.        Whether the SAR Forms are Relevant

Under the Federal
Rules of Evidence, evidence is relevant if “it has
any tendency to make a fact more or less probable than it would be without the
evidence; and the fact is of consequence in determining the action.” Fed. R.
Evid. 401. Some of my colleagues have held that the SAR Forms are irrelevant
and accordingly denied other operators’ motions to compel their production. See
Pocahontas Coal Co., 34 FMSHRC 903, 905 (April 2012) (ALJ Feldman)
(holding that “the Secretary’s special assessment criteria, as vague as it may
be, is not relevant given the de novo authority of the Commission to
assess civil penalties, [and therefore,] the special assessment review forms .
. . are not discoverable”); Hidden Splendor Res., Inc., 33 FMSHRC 2345,
2347 (Sept. 2011) (ALJ Rae) (holding that “the conclusions and contemporaneous
recommendations” in the SAR form are “irrelevant in the de novo
determination by the Administrative Law Judge at hearing”); Consolidation
Coal Co., 35 FMSHRC 3236, 3236–37 (Sept. 2013) (ALJ Moran) (denying motion
to compel production of SAR Form on the grounds that “once a matter is before
the Commission, no part of Part 100 or that subset within it, [including]
special assessments under section 100.5, remains material”).

My colleagues denied other
operators’ motions to compel SAR Forms largely on the grounds that the
Secretary’s penalty assessment process is irrelevant. I agree with this
conclusion. As I previously stated, see discussion supra Part II.A.2,
the Commission assesses penalties de novo and is not bound by
the Secretary’s proposed penalties or by the regulations in 30 C.F.R. part 100.
Am. Coal Co., 933 F.3d at 727; see also Brody Mining, LLC, 37
FMSHRC 1687, 1701 (Aug. 2015) (holding that the Part 100 regulations “are not
binding in any way in Commission proceedings”). Furthermore, in Solar
Sources Mining, LLC, 42 FMSHRC 181, 200 (Mar. 2020), the Commission held
that ALJs “are not required to explain their divergence from a special
assessment.” Thus, whatever “remedial enforcement judgments the Secretary might
or might not have made in suggesting a penalty amount are beside the point,”
because the ALJ will independently determine the penalty by applying the
statutory factors in section 110(i) of the Mine Act, 30 U.S.C. § 820(i). Am.
Coal Co., 933 F.3d at 727.

However, the aggressive nature of
CONSOL’s motions in this case dictates careful analysis of whether the SAR
Forms are relevant. For me to consider the Secretary’s proposed special
assessment penalties, she must prove facts justifying those penalties at the hearing.
See Solar Sources Mining, LLC, 42 FMSHRC at 197 (holding that
“favorable consideration of the agency’s proposal for a high penalty is subject
to the Secretary’s presentation of proof of facts warranting a high penalty”). Hence,
the Secretary must present evidence addressing the six statutory criteria set
forth in 30 U.S.C. § 815(b)(1)(B), the same statutory criteria I must consider
in determining an appropriate penalty. See 30 U.S.C. § 820(i). As the
SAR Forms “describe the facts and circumstances justifying the recommendation
for special assessment,” they may provide insight into what evidence the
Secretary will present at the hearing for me to consider. Volume III – 30
CFR Parts 40 through 50 and Parts 62 and 100, MSHA (May 16, 1996), https://www.msha.gov/volume-iii-30-cfr-parts-40-through-50-and-parts-62-and-100;
see also Aggregate Indus., W. Cent. Region, Inc., 25
FMSHRC 88, 89, 90 (Feb. 2003) (ALJ Manning) (holding that “the Special
Assessment Review Form has some marginal relevance to the Secretary’s high
negligence and unwarrantable failure determinations”); CDK Contracting Co.,
25 FMSHRC 289, 291 (May 2003) (ALJ Manning) (same); Coeur Alaska, Inc., 37
FMSHRC 2499, 2500 (Oct. 2015) (ALJ Simonton) (holding that the operator “is
entitled to the full factual basis upon which the special assessment was issued
so that it may mount a complete defense to both the fact of violation and the
assessed penalty”). I therefore determine that the SAR Forms are only
irrelevant to my ultimate determination of an appropriate penalty after
the hearing. However, the SAR Forms could have a “tendency to make a fact more
or less probable than it would be without the evidence; and the fact is of
consequence in determining” this action. Fed. R. Evid. 401. Accordingly, I
conclude that the SAR Forms are marginally relevant to the Secretary’s high
negligence and unwarrantable failure determinations in this case and therefore discoverable
subject to the Secretary’s claim of deliberative process privilege.

B.        Whether the SAR Forms are Protected by the
Deliberative Process Privilege

1.         Applying the Test for
the Deliberative Process Privilege

As previously discussed, see
discussion supra Part II.C.1, in order for a document to be protected
under the deliberative process privilege, it must: (a) be “pre-decision;” (b)
pertain to communications between subordinates and supervisors; and (c) relate
to “deliberative” communication—i.e., the process by which policies are
formulated. Dust Cases, 14 FMSHRC at 992 (quoting Jordan, 591
F.2d at 774). The information contained in the SAR Forms was exchanged prior to
the formulation of MSHA’s decision to propose special assessment penalties for
the violations. See Volume III – 30 CFR Parts 40 through 50 and Parts
62 and 100, MSHA (May 16, 1996), https://www.msha.gov/volume-iii-30-cfr-parts-40-through-50-and-parts-62-and-100.
Therefore, I determine that the information in the SAR Forms consists of
pre-decisional communications.

The SAR Forms pass from the issuing
MSHA inspector, who makes a factual or strategic advice-giving recommendation, to
superior officials who engage in the deliberative process and either agree or
disagree with the recommendation for the same or independent reasons. See
Volume III – 30 CFR Parts 40 through 50 and Parts 62 and 100, MSHA (May
16, 1996), https://www.msha.gov/volume-iii-30-cfr-parts-40-through-50-and-parts-62-and-100.
Thus, I determine that the information contained in the SAR Forms pertains to
communications between subordinates and supervisors.

The SAR Forms record the thoughts,
ideas, reasoning, and analyses used by the MSHA inspectors and their
supervisors in reaching the decision to propose a special assessment penalty
for a violation. Indeed, as the D.C. Circuit noted, the Secretary’s special
assessment penalty proposal “is nothing more than h[er] own chosen litigating
position. It is a party’s argument; it is not a fact to be proven by evidence.”
Am. Coal Co., 933 F.3d at 727. Thus, the SAR Forms consist of the
“Secretary’s internal deliberations about what penalty to recommend.” Id.
Accordingly, I determine that the SAR Forms contain deliberative
communications.

The Secretary’s SAR Forms can contain
a significant amount of factual information about the violations. This factual information,
however, directly relates to MSHA’s task of determining whether a special
assessment penalty, in the Secretary’s view, is warranted for a violation. Because
that information guides the Secretary’s decision-making process, it must be
privileged as well. In other words, the factual information contained in the
SAR Forms is “inextricably intertwined” with the MSHA inspectors’ analysis of
whether the violations warrant special assessment penalties. Consolidation
Coal Co., 19 FMSHRC at 1246–47 (citation omitted). As a result, I
determine that the entire portion of the SAR Forms related to the proposed
special assessment is privileged. An in camera review of the SAR Forms
would be superfluous. The presence of facts in the SAR Forms does not vitiate
the privilege protecting the documents. The very nature of a SAR Form is to
ensure that the issuing inspector and MSHA superiors provide their personal
opinions, evaluations, and recommendations regarding the proposed special
assessment; indeed, the form itself contains printed language that the
information provided is privileged. I agree that those communications are
privileged.

2.         Whether CONSOL Can
Overcome the Privilege

Although I find
that whole portions of the SAR Form are entitled to the deliberative process
privilege, I must determine whether the privilege passes the balancing test set
forth in Bright Coal Co., 6 FMSHRC 2520 (Nov. 1984). As
previously discussed, see discussion supra Part II.C.3, this
balancing test involves consideration of whether the Secretary is in sole
control of the information. Dust Cases, 14 FMSHRC at 988; Bright Coal
Co., 6 FMSHRC at 2526. The Secretary notes in her opposition that she has
already produced or identified the factual bases she considered in proposing
special assessment penalties for the violations in this case. (Sec’y Opp’n at
7.)

Moreover, as previously discussed, see
discussion supra Part II.A.1, six statutory factors guide the
Secretary’s enforcement discretion in deciding whether to propose a special
assessment penalty for a violation. 30 U.S.C. § 815(b)(1)(B); 30 C.F.R. §
100.5(b). Four of the six statutory factors include: “the operator’s history of
previous violations,” “the appropriateness of such penalty to the size of the
business of the operator charged,” “the demonstrated good faith of the operator
charged in attempting to achieve rapid compliance after notification of a
violation,” and “the effect on the operator’s ability
to continue in business.” 30 U.S.C. § 815(b)(1)(B). CONSOL’s
history of previous violations, the amount of coal it produces, and when the
citation and order at issue in this case were terminated, are publicly
disclosed and can all be found on the Mine Data Retrieval System website. See
Mine Data Retrieval System, U.S. Dep’t
of Labor, https://www.msha.gov/data-and-reports/mine-data-retrieval-system.
CONSOL is also in the best position to consider the effect of the proposed
penalties on its ability to continue in business, based on its knowledge of its
own business. Sec’y of Labor v. Davis Coal Company, 2 FMSHRC 619, 624
(Mar. 1980) (holding that “[t]he burden of proving that the penalties proposed
will have an adverse effect on an operator’s ability to continue in business is
obviously that of the operator”).

The other two statutory factors the
Secretary must consider are “whether the operator was
negligent,” and “the gravity of the violation.” 30 U.S.C. §
815(b)(1)(B). The Secretary has shared copies of the citation and order and the
MSHA inspector’s notes, which set forth in detail the
justifications underlying the issuance of the citation and order, as well
as relevant photographs. (Sec’y Opp’n. at 7; Sec’y Pre-Hr’g Report at 4.) The
Secretary also provided the “Narrative Findings for a Special Assessment”
document for this case which contains the underlying facts of the violations,
including facts regarding the gravity of the violations and CONSOL’s negligence.
(Sec’y Opp’n. at 9.) After summarizing the facts of the violations in this
case, MSHA explains in the Narrative Findings document that it is proposing “a
special assessment under § 100.5 because the violations exhibited a high degree
of negligence and contributed to a serious accident.”[1]
Moreover, the Secretary highlights that CONSOL has had the opportunity to
explore the factual bases underlying the issuances of these proposed special
assessment penalties through depositions. (Sec’y Opp’n at 7.)

I therefore determine that the
Secretary is not in sole control of the information that CONSOL seeks, as the
information is reasonably accessible to CONSOL. Thus, in accordance with Bright
Coal Company, I conclude that, because disclosure of the SAR Forms is not
essential to the fair determination of this case, CONSOL has not overcome the
Secretary’s assertion of the deliberative process privilege, and the unredacted
SAR Forms should not be produced.

I conclude that CONSOL has failed
to establish a need for the portions of the SAR Forms that contain
communications protected by the deliberative process privilege invoked by the
Secretary. The factual information in the SAR Forms that underpins the
Secretary’s proposed special assessment penalty, and sought by CONSOL, is
reasonably accessible to CONSOL for it to challenge the proposed penalties at
hearing and otherwise adequately prepare a defense. Additionally, CONSOL’s
other arguments fail because the Commission held in Solar Sources Mining
that Commission Judges need not explain any deviation from the Secretary’s
proposed special assessment penalties. Solar Sources Mining, LLC, 42
FMSHRC at 200. Moreover, Commission Judges do not rely on the Secretary’s
proposed special assessments to explain their own penalty assessments; rather, Judges
assess penalties de novo based on a determination of the facts educed at
hearing. See discussion supra Part II.A.2. Lastly, the status of
MSHA Inspector Mullins and MSHA Supervisor Nicholas Christian as named
witnesses does not change the nature of the SAR Forms or their status as
privileged communications.

V.  ORDER

Based on the foregoing reasoning, CONSOL’s
Motion to Compel Unredacted Special Assessment Review Forms is hereby DENIED.

/s/
Alan G. Paez

Alan
G. Paez

Administrative Law Judge

Distribution (Via Electronic Mail Only):

Monica W. Hanratty, Esq. & Matthew R. Epstein, Esq.

U.S. Department of Labor, Office of the Regional Solicitor,

1835 Market Street, Mailstop SOL/22, Philadelphia, PA 19103-2968

([email protected])

([email protected])

James P. McHugh, Esq., Pence Law Firm PLLC, P.O. Box 2548,

Charleston, WV 25329-2548

([email protected])

([email protected])

/MEK

[1] In her petition, the Secretary references “the
Narrative Findings for a Special Assessment in Exhibit A,” but neglected to
attach the narrative. (Sec’y Pet. at 3.) However, the Secretary has submitted
the narrative to CONSOL and the Court as an exhibit in her Motion for
Protective Order Regarding Rule 30(b)(6) Deposition. (Sec’y Mot. for Protective
Order, Ex. D.)